Home may be where the heart is, but if you are a minor child in divorce, your legal residence is where the court says it is. Determining your child’s legal residence is very often one of the most emotionally charged aspects of a divorce. It is not unusual for both parents to want to be designated as their child’s “residential custodian.” Unfortunately, this is one area of divorce where the law causes more problems than it solves.
What is “ Residential Custody?”
There are two aspects of custody: legal and residential (which is also sometimes referred to as “physical custody.”) Legal custody is the right to make major life decisions for your child. Residential custody is where your child lives most of the time.
There are two possible forms of residential custody: joint or sole. That is, parents either share joint residential custody of their child, or one of them has sole residential custody of their child and the other gets “visitation” time, or “parenting” time with their child, usually based upon a set schedule.
The concept of residential custody seems easy enough. If your child lives with you more than with your ex, you will be your child’s “residential custodian.” If your child lives with your ex more than with you, your ex will be your child’s “residential custodian.” If your child spends equal time with you and your ex, you will both be your child’s “residential custodian.” But, while the concept of residential custody may seem simple, the application of that concept is anything but.
When Joint Residential Custody Works
When parents share residential custody of their child they each spend approximately equal amounts of time with their child. While it is usually impossible to get an exact 50/50 split of time, parents with joint residential custody try to get as close to an equal division of time as possible.
Since joint residential custody requires the child to travel from one parent’s home to the other fairly frequently, in order for joint residential custody to work, parents must live close to one another. Otherwise, the logistics of driving a child back and forth to school, to activities, and to the other parent’s home become completely impossible. (Unless, of course, one parent doesn’t mind becoming a professional chauffeur, and the child doesn’t mind spending the better part of his or her childhood in the backseat of a car!)
When Joint Residential Custody is a Problem
Joint residential custody is not an option for parents who don’t live really close to each other. It is also not an option for parents who can not cooperate with each other, at least on a basic level for the good of the children. (Let’s face it. If you can’t even be in the same room with your ex, co-ordinating driving time to your kid’s traveling soccer practice is going to be torture for everyone.) It is also not an option for infants or very young children, who need more of a fixed home environment than older children.
The biggest problem with joint residential custody, however, is that sometimes joint residential custody is not an option, even when the parents want it to be.
Some courts in some areas will not grant joint residential custody to parents because the judges either don’t think that the law in their state allows it, or they don’t think that bouncing children back and forth between their parents’ homes like ping-pong balls is ever in the child’s best interest. What’s more, some school districts require only one parent to be designated as the child’s residential custodian so that it is clear which school the child can attend.
If a child is college-age, only one parent can be designated as the child’s residential parent for financial aid purposes. And, of course, only one parent can claim a child as dependent on his/her income taxes in any given year. (Although a custodial parent can release the dependency exemption by signing IRS Form 8332, so this is an easy problem to solve.)
The Real Problem with Residential Custody
For all of these reasons, residential custody matters. But the real reason residential custody matters is that if one parent is designated as the residential custodian, that parent is entitled to receive child support from the other parent. While I hate to be cynical, the truth is that most of the fights about residential custody which I have witnessed in my career, boil down to a battle over which parent is going to pay, and which parent is going to receive, child support.
It is sad to think that parents who don’t really want to spend time with their child will fight over residential custody just to avoid paying child support, but, it happens all the time. In some states, the amount of time a parent spends with his/her child affects the amount of child support that parent has to pay, or gets to receive. In other states, whichever parent is designated as the “residential custodian” of the child is entitled to receive child support from the other parent, even if both parents actually spend close to equal amounts of time with their child.
Since child support laws vary from state to state, it is absolutely essential that, before you try to work out any agreement regarding residential custody or parenting time, you consult with a lawyer in your area so that you understand how your state’s child support laws work.
A Less Jaded View
Of course, not every parent fights over residential custody for financial reasons. Being designated as a residential parent (whether it is solely or jointly) somehow seems like a declaration to the world that you are a “real” parent, that you care enough about your child to give your child a home.
The tough part of all of this is that, in this area at least, the law is not in sync with society, nor does it care about anyone’s feelings. In the eyes of the law “residency” is a precisely defined legal concept, with very specific rights and responsibilities attached to it. The law doesn’t care whether designating someone as a “non-residential custodian” makes that person feel like less of a parent. But, the one thing the law doesn’t contemplate, and really can’t control, is what kind of a person, and what kind of a parent, you really are. And, while the law may define your child’s residence, only you can make your child a home.